The minister of the (Federal Supreme Court) of a redesign of the Brazilian Justice system. “After 22 years of the last reform, I believe it is time to carry out a new cycle of constitutional and legal changes”, states the judge, listing 15 points that he claims are priorities.
It was implemented in 2004, after 13 years of processing in the National Congress. The starting point was a PEC (constitutional amendment project) proposed by the then federal deputy from São Paulo, Hélio Bicudo, in 1992. After several versions, the text came into force with .
Among the innovations brought about by the reform is the creation of binding precedents of the STF (a mechanism that standardizes jurisprudence impacting lower courts) and the general repercussion as a criterion for admitting extraordinary appeals to the court — they now depend on the political, economic, social and legal relevance of the object to be admitted.
Furthermore, there was the creation of judicial control bodies, such as CNJ (National Council of Justice), expansion of the powers of the Labor Court and the (Superior Court of Justice).
This happens in a context of deterioration in the image of the STF and the Judiciary. The minister has also done something like the current president of the Supreme Court, minister, by creating a code of ethics.
Experts consulted by Sheet claim that they were responsible for a verticalization of the Justice system. The majority point to an accumulation of power in the STF, which began to act more closely in political disputes.
For some, the delay in legal proceedings cited by Dino is a chronic problem and requires other remedies than those proposed by the magistrate.
According to José Roberto Batochio, lawyer and former president of the Federal Council of the (Brazilian Bar Association), the 2004 reform revealed a “vertical interpretation of the judicial hierarchy”. This was reflected in the creation of binding precedents, for example.
“The free conviction of judges must be preserved as much as possible, especially because the person who is in contact with the pulse of the facts, the evidence, the parties is the judge of first degree”, argues Batochio, who was a federal deputy for -SP between 1998 and 2002 and participated as sub-rapporteur in a special commission that debated the reform.
The creation of the binding precedents is attributed to the former STF minister and former federal deputy Nelson Jobim. He was also rapporteur, as a PMDB-RS parliamentarian, for the commission that debated the reform. He would take over as a member of the Supreme Court in 1997, as recommended by former president Fernando Henrique Cardoso (PSDB).
In his article, Dino highlights his personal participation in the discussions in 2004 as an advisor to the presidency of the Supreme Court, which was occupied by Jobim.
José Maurício Conti, former judge and of , does not directly associate any diagnosis of accumulation of excessive power in the Judiciary with the 2004 reform. “There are situations in which one of the Powers stands out compared to the others. It is a specific and case-by-case situation of an improper use of prerogatives that was not counterbalanced”, he states.
TJ-SP (São Paulo Court of Justice) judge Marcelo Semer says that this process of verticalization is also related to other initiatives following the reform, such as the 2015 Code of Civil Procedure, which guaranteed the construction of jurisprudence “from top to bottom”,
For him, the Supreme Court incorporated the “” from the reform, as in decisions that directly impact public policies on access to health and daycare.
There is, according to the judge, a global trend of change in the interpretation of laws by judges. “Before, the judge entered very little into the merits of administrative acts, because he only judged legality. Now, he starts to have a more principled view.”
Semer states that the delay in concluding legal processes was cited as justification for the 2004 changes and for previous reforms in the Judiciary, such as those promoted by the military dictatorship in the 1970s, as part of the so-called “”.
“There was more or less the same [em 2004 e na década de 70]. Speed is used as a motto and ends up falling into verticalization, that is, control of power. Of course the mechanisms are different. We didn’t close Congress in 2004”, says Semer.
The solution to solving the delay in the Brazilian Judiciary, according to him, is to reduce the number of cases that reach the Court. Until then, all mechanisms would be “palliative”, he says.
For Conti, the use of the Judiciary to resolve conflicts is something cultural. He defends the use of new technologies as management optimization tools and is reticent about procedural changes to reduce processing times.
In , Dino defends changes to requirements for proposing resources.
The lawyer and executive director of Justa, states that studies place the 2004 Brazilian reform in a global context of changes in the legal system, mainly in Latin America.
“These reforms were the result of a movement forged within international financial institutions, especially the World Bank and the . The beginning of the 1990s was a period of consolidation of judicial reforms through conditionalities inserted in contracts with developing countries”, he states.
The composition of the system also generates divergences. Four of the 15 council members do not come from careers in the Justice system. Two of them are lawyers appointed by the OAB, and the other two are citizens appointed by Congress. The lack of regulation for the appointment of parliamentarians is criticized by experts.
states that the verticalization corroborated by the 2004 reform can be reversed precisely through changing the composition of these bodies, to “reposition the role of actors external to the justice system, in designing the best solutions”.
